held in the case of a brickmaker, who manufactured a quantity of brick, on a brickyard furnished by another with wood and other necessaries to carry on the work, the agreement being to pay the manufacturer so much per thousand for the brick made and shipped, on the return of the vessel in which the same were carried to market. Where, in such case, the brick were seized and sold as the property of the employer, under an execution against him, it was held that an action of trover lay by the brickmaker against the purchaser who removed the same; but that the purchaser might show the state of the accounts between the employer and the brickmaker, and that the latter should recover only the amount of his lien upon the brick taken by the purchaser. In other words, that the general property was in the employer, and capable of being sold on an execution against him; while the special property, including the legal right to the possession, remained in the manufacturer until extinguished by a voluntary delivery.2

§ 421. So where a quantity of cotton yarn was delivered to a bailee, upon an agreement that he should procure it to be woven into cloth and receive a commission thereon as the price of the labor; and he delivered the yarn to another person to weave for him at an agreed price to be. paid in goods; and the cloth, being woven, was attached as the property of the weaver; it was held that the bailee receiving the yarn to be woven into cloth, had a special property in the cloth, and that the weaver acted as his servant or agent, having no property or legal interest in the cloth. The rule is the same, where logs are delivered at a saw-mill under a contract with the miller that he shall saw them into boards, within a specified time, on shares; the general property remains in the owner of the logs until the work is finished according to contract; and the bailee for hire of services can have no lien for a part or partial performance of his agreement. When a manufacturer receives goods for the purpose of being wrought in the course of his trade, the contract is entire; and without a stipulation to the contrary, he has no right to demand payment until the work is complete. A fortiori he bas no right to carve out payment for himself, without consulting the bailor. A miller is entitled to take toll from your grist, on grinding it; but suppose he chooses to grind only a part, and then sells the whole. He is

1 Moore v. Hitchcock, 4 Wend. R., 292; Wheeler v. McFarland, 10 Wend., 318, 324.

24 Wend. R., 296; 3 Hill R., 491. There was in the case stated no question raised as to the right of the sheriff to seize the property on execution. 3 Eaton v. Lynde, 15 Mass. R., 242.

415 Mass. R., 242.

Pierce v. Shenck, 3 Hill R., 28.

not entitled to toll for what he had actually ground. It is like the common case of a man undertaking to labor during a certain time, or in performing a certain amount of work for so much; his work must be finished before he can claim payment; and if he fails to perform according to his contract, he cannot acquire by a lien that which he cannot legally demand.1

Where the agreement is to manufacture chattels on shares, on a completion of the work, the parties to the contract become as we have seen tenants in common of the manufactured goods. And the bailee has a right to retain the goods until a division has been made and he has been paid the stipulated compensation for his labor, whether it be one-tenth or one-half. Of course he acquires the absolute title to his portion of the goods from the time they are specifically set apart to him in payment.❜

§ 422. Every bailee for hire, who by his labor or skill imparts additional value to the goods, has a lien thereon for his charges, there being no special contract inconsistent with such lien. The lien exists equally, whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price, unless there be a future time of payment fixed. In that case the special agreement would be inconsistent with the right of lien, and would destroy it.3

The bailee's lien extends to every portion of the goods or materials delivered under one contract, and is not confined to the particular portion, pro rata, on which the labor has been bestowed; so that the bailee by a delivery of a part of the manufactured goods, does not defeat his lien upon the remainder for his whole services. So, too, where several parcels of goods, belonging to one owner, are carried the same voyage, a delivery of part of them does not divest the carrier of his lien on the remainder for the whole freight.5

§ 423. The bailec waives his lien by surrendering the goods to the bailor; and he loses it as to third persons by such a surrender, though he stipulates that his lien shall continue. He also waives his lien by any contract inconsistent with its continuance; as where a mechanic

13 Hill R., 30, 31.

23 Hill R., 28.

3 Blake v. Nicholson, 3 Maule. and Selw. R., 168; Chase v. Wetmore, 5 id., 180; Crawshay v. Iomfray, 4 Barn. and Ald. R., 50; Burdick v. Murray, 3 Verm. R., 302.

4 Morgan v. Congdon, 4 Comst. R., 552.

Schmidt v. Blood, 9 Wend. R., 268; McFarland v. Wheeler, 26 id., 467.

6 McFarland v. Wheeler, 26 Wend., 467; Marvin v. Smith, 56 Barb., 600; Morse v. Andros. R. R. Co., 39 Maine, 285.

agrees to look to a third person for his pay for repairs made upon a wagon; or where he agrees to give credit for a stipulated time; or agrees upon a mode and time of payment excluding the theory of a lien." But the special agreement cannot be set up by the bailor after he has himself failed to perform it, to defeat the artisan's lien at common law.* His lien, originating in the customs and usages of business, is favored on grounds of equity and convenience; and yet not so much favored as the vendor's lien, or equitable right to the purchase money of the goods sold by him."

§ 424. The bailee may defend or assert his interest in the goods; he may retain the goods and defend his interest in them, as against the owner, and as against third persons. He may maintain an action of trespass against any one interfering with his possessions; and an action of trover against the party seizing and detaining the goods. His recovery as against the owner, or as against the party succeeding to his interest, is limited to the amount of his demand. On a total breach of the contract by the bailee, as where he pawns the property, the owner may at once recover its value in trover, without tendering the amount for which it was delivered in pledge. And on completion of the work, the bailor has the right of immediate possession as against third persons and strangers. Admitting that the bailee's lien is not lost, where he allows a third party to take the goods on payment of his charges, it is quite clear that the third party forfeits the lien by any attempt to dispose of the property in defiance of the owner's title.10 A sale of the goods by him defeats the lien.11

8

§ 425. Losses, by whom borne. The general rule is that the owner must bear the loss of goods destroyed by fire or by casualties of a like kind. The bailee is not liable where the goods are lost or destroyed without any neglect on his part.12 If materials are delivered to him to manufacture, or if an article is entrusted to him to be repaired in the

1 Bailey v. Adams, 14 Wend., 201.

2 Fielding v. Mills, 2 Bosw., 489. 3 Trust v. Pirsson, 1 Hilton, 292.

Mount v. Williams, 11 Wend., 77.

• Fieldings v. Mills, supra, and Benedict v. Field, 16 N. Y., 595.

6 Benedict v. Murray, 3 Vt. R., 302. Moore v. Hitchcock, 4 Wend., 292. Gallaher v. Cohen, 1 Browne, 43.

• King v. Humphreys, 10 Barr R., 217. 10 Nash v. Mosher, 19 Wend., 431.

11 Dudley v. Hawley, 40 Barb., 397; Ely v. Ehle, 3 N. Y., 506; Barrett v. Warren, 3 Hill, 348.

12 Hurd v. West, 7 Cow., 752; 2 N. Y., 153.

course of his business, and it is accidentally destroyed before the work is completed, the loss falls upon the owner. And hence it is held that an action lies by a shipwright for work and labor done, and materials delivered in repairing a ship, which is casually burnt in the dock by a fire communicated from an adjacent building, before the repairs are completed.1

On the other hand, where a mechanic or manufacturer is employed to make or manufacture an article out of his own materials, the title remains in him until the finished article is delivered, and he must bear the loss where it is destroyed by accident or fire. And as he bestows his labor and services upon his own property, he cannot recover for them as a separate demand. His only claim upon the employer is under the contract; and that only gives him the price of the article. when it is finished and delivered.3

It is quite clear that the owner of goods or materials bailed for work and services upon them, has an insurable interest in the property; and that the bailee also has an insurable interest. The party on whom a loss by fire must fall, may protect himself by procuring a policy of insurance on the property. A factor may procure a policy in his own name covering its full value, and the moneys received thereon belong to the owner, after satisfying the factor's lien."

§ 426. HIRE OF LABOR AND SERVICES GENERALLY.

A brief consideration of the principles applicable to contracts of this class is in place here, because they bear with equal force upon the contract of bailment. Under a contract for work and services, the contractor must perform in a workmanlike manner. Where materials are delivered to be manufactured, and the work done upon them is not properly performed, the bailee cannot demand compensation therefor; it being a settled principle that where there has been no beneficial service there shall be no pay. Without any express agreement on the

1 Menctone v. Athawes, 3 Burr. R., 1592; 2 Kent's Comm., 591; Atkinson v. Bell, 8 B. & C.277.

2 Atkinson v. Bell, supra.

3 Mixer v. Howarth, 21 Pick. R., 207; Code of Louisiana, Arts. 2729, 2730.

4 Van Natta v. The Mutual S. Ins. Co., 2 Sandf., 490.

Savage v. Corn Exchange Ins. Co., 36 N. Y., 655; Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y., 401; 3 Keyes, 87. A lienor has no claim to the moneys paid by the insurer to the owner. Carter v. Rockett, 8 Paige, 437.

subject, the employer must pay a reasonable compensation for the services rendered him on his request or at his instance. And the contract being silent on the subject, the artisan or mechanic is bound to render faithful and diligent services. The law requires of each man in his vocation, diligence and skill. It requires this of a carpenter or mason. When he sues for work and labor under a general retainer, the value of his services depends upon the skill and fidelity with which they were rendered: he recovers the worth of his services, quantum meruit? The same principle applies where a blacksmith or farrier is employed to shoo a horse, or a tailor to make a garment, or a watchmaker to repair a watch. The law implies a contract on the part of each that he will perform the work entrusted to him within the line of his business, diligently and skillfully; and it takes some care that he shall be properly educated in the duties of his calling."

§ 427. The degree of intelligence and skill required of a man by the law, depends much upon his calling. An engineer, a lawyer, or physician must be specially educated to the duties of his calling; besides the requisite scientific knowledge, he must have reasonable skill in its application. Compared with unprofessional men, he must possess a high degree of intelligence, together with the accurate and exact knowledge of an expert. Physicians, for example, must have a knowledge of the healing art; and though medicine be not one of the exact sciences, it is quite clear that skill in the practice of medicine can only be acquired by the study and acquisition of those sciences which stand related to the practice, such as physiology and chemistry; and by close observation. and experience in the treatment of diseases. It is equally evident that the skill of a surgeon, can only be gained by a perfect union of science with practice. The law assumes the necessity of this union, and implies a contract on the part of the physician or surgeon that he possesses and will exercise reasonable and ordinary skill in his profession; not the highest degree of science and skill; but that reasonable measure

1 A promise to pay is implied; Hicks v. Burhans, 10 John. R., 243; Dunbar v. Williams, 10 John., 249; Robinson v. Raynor, 23 N. Y., 494; but not contrary to the fact; Galvin v. Prentice, 45 N. Y., 132; Topping v. Swords, 1 E. D. Smith, 600; or presumed fact: Williams v. Hutchinson, 3 N. Y., 312.

2 Grant v. Button, 11 John. R., 277; Emery v. Smith, 43 N. H., 151; Adams v. Woonsocket Co., 11 Met., 327; Williams v. Keech, 4 Hill, 163; Farnsworth v. Garrard, 1 Campb., 38.

33 Black. Comm., 165. Our system of apprenticeship is designed for the education and training of the young in the art or business which they are to pursue in life. 1 Black. Comm., 426.

4 Carpenter v. Blako, 50 N. Y., 696, reversing S. C., 60 Barb., 188.